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Extent of intoxication is relevant to voluntary intoxication defense

Evidence of a plaintiff’s blood alcohol content, and the way that level of intoxication affects people, is relevant and admissible to support a voluntary intoxication defense in a negligence action, the Court of Appeals, Division 1, held

In Gerlach, a woman who had been drinking with friends walked back with her boyfriend to his apartment. Before entering, he stopped to smoke a cigarette. Upon hearing a noise, he turned and saw his girlfriend fall from above. A rotted railing from the balcony of his second story apartment also fell. She was brought to the hospital, where a blood test taken less than an hour after the accident revealed that her blood alcohol concentration was approximately .238.

No one witnessed her fall, and she had no recollection of events. She sued the apartment owner for negligence. Based on the fallen railing, the plaintiff’s theory was that the apartment owner had negligently maintained the balcony railing such that it was severely rotten and had given way when she leaned against it.

The apartment owner’s defense theory was that the plaintiff was so impaired by her alcohol consumption that instead of entering her boyfriend’s apartment through the building, she had attempted to scale it and fell while trying to climb over the railing from the outside. The apartment owner invoked the statutory voluntary intoxication defense of RCW 5.40.060(1). Under that statute, the plaintiff’s claim would be barred if the apartment owner could prove that (a) the plaintiff was intoxicated at the time of the accident; (b) her intoxication was a proximate cause of her injuries; and (c) she was more than 50 percent at fault.

The apartment owner engaged a medical expert on the effects of alcohol. He evaluated the blood test from the hospital, converted the alcohol measurements of that test to the blood alcohol content numbers used in the statute, and was prepared to testify regarding the extent to which a blood alcohol content of .238 would affect a person’s judgment, psychomotor functions, and cognitive abilities. Specifically, the expert witnesses opined that (1) a person begins to be impaired at a blood alcohol content of approximately .050; (2) a person would experience severe impairments with a blood alcohol content over .200; (3) the plaintiff’s blood alcohol content at the time of the accident made it less likely she could even stand safely on a balcony, much less climb over its railing; and (4) the extent of her intoxication contributed to her injuries.

The plaintiff moved in limine to exclude the evidence that her blood alcohol content was .238 and to exclude the testimony of the expert witness. When the plaintiff offered to stipulate that she was intoxicated, the trial court granted the motion. The trial court reasoned that her admission was sufficient to prove the intoxication element. Therefore, specific evidence of the extent of her intoxication was no longer necessary to support the defense, and it would not be relevant. Further, admitting that evidence would be more prejudicial than probative under ER 403.

At trial, friends who had been with the plaintiff testified they did not know how much the plaintiff drank on the night of her fall. They did not testify that she was extremely intoxicated. The jury found the apartment owner was negligent and was 93 percent at fault. It awarded the plaintiff over $3 million. The apartment owner appealed, arguing it was an abuse of discretion to exclude the evidence and expert testimony.

The Court of Appeals reversed. It agreed that if the only thing the apartment owner had to prove was that the plaintiff was intoxicated, her stipulation that she was intoxicated rendered irrelevant the evidence of her blood alcohol content and its theoretical effects. However, it reasoned that the evidence is relevant to show the other aspects of the voluntary intoxication defense: whether, and to what extent, her intoxication was the proximate cause of her injury. The jury was entitled to know the level of her intoxication to calculate her share of fault.

The court also rejected the argument that the evidence must be excluded because the specifics about the extent of plaintiff’s intoxication would be too prejudicial. It acknowledged that the evidence of severe intoxication could raise an emotional reaction from jurors, but disagreed that the evidence was so prejudicial as to outweigh its probative value.

Excluding the evidence meant that the apartment owner had no chance to show that the plaintiff was predominantly liable for the accident. In turn, that meant that the trial court’s error in granting the motion to exclude was not harmless to the apartment owner. The Court of Appeals reversed and remanded the case for a new trial.

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